Sardar Muhammad Sadiq Khan, J--This is an application filed under Order XLIII, Rules, 1, 3 to 5 & 6 of the Supreme Court Rules, 1978, read with Section 2 of the Supreme Court (Power of Review) Act, 1980 as well as Order XLVI of the IBID rules and Section 42-A & D of the Azad Jammu and Kashmir Interim Constitution Act, 1974 for hearing of Criminal Review Petition No, 1/2006 by rescinding and recalling the order dated 11.5.2010.
2. Necessary facts forming the. back ground of the instant application, are that the convict- applicants were awarded death sentence by the Shariat Court vide judgment dated 30.11.2005. An appeal against the judgment of the Shariat Court was also been dismissed by this Court vide judgment dated 23.6.2006. The convict-applicants filed a review petition against the judgment of this Court which was also dismissed on 11.10.2006 and the order of the Court was duly communicated to the petitioners through Superintendent Jail and served" upon them before 7,10.2006, as is evident from service report received back in the office of.. the Court. The convict- applicants obtained copy of the above order through an application dated 19.10.2006 and filed a mercy petition before the Worthy President which was rejected by his Excellency through the order dated 29.10.2007. The convict-applicants filed second application for review before this Court on 26.12.2006, The Division Bench of this Court, vide order dated 11.5.2010 rejected the application with' the observation that the question of invoking the inherent jurisdiction of the Court to reopen the case does not arise. This is a third application filed by the convict-applicants, to reopen the review petition and to recall and rescind the same.
3. Sardar Rafique Mehmood Advocate, the learned counsel for the convict-applicants, after stating brief facts of the case submitted that under the Order XLIII of the Supreme Court Rules, the application' is well within time and competent from all 'angles. He submitted that the applicants have been condemned unheard through the order dated 11.5.2010, therefore, the same is liable to be recalled and rescinded. The learned counsel stressed on the point that on 11.5.2010, the author of the judgment, i.e Mr. Justice Syed Manzoor Hussain Gillani, stood retired from the office of Acting Chief Justice/Judge of the Supreme Court, therefore he could not sign the judgment on the said date. He contended that criminal Misc. Application No, 1/2007 was allowed by the majority of 1:2 by this Court and the order of dismissal of Review Petition No, 1/2006 dated 11.10.2006 was recalled and rescinded vide order dated 22.12.2009 on the ground that the convict-applicants shall be heard but the order dated 11.5.2010 reveals that the same has been passed without providing them an opportunity of hearing which is against the principles of natural justice. The learned counsel referred to page 109 of this paper book. The learned counsel further submitted that the Review Petition No, 1/2006 filed on 1.7.2006 by the applicants against the judgment of this Court passed in Appeal No, 19/2006 dated 23.6.2006, revived on 2.12.2009 is still awaiting the hearing in presence of the petitioners by issuing of their production by notice through superintendent District Jail, Mirpur.
The order dated 11.5.2010 runs counter to the judgment of the full bench of this Court dated 22.12.2009. The learned counsel further objected that taking up of any other cause, except the transfer Application No, 1/2010 or for that matter hearing and disposal of some second review petition without admission was thus an act totally against the rules of procedure of the Supreme Court. He finally submitted that by accepting the application, the order dated 11.5.2010 may be recalled and rescinded and after providing an opportunity of hearing to the applicants, the review petition may be disposed of in the light of the judgment of the full Court dated 22.12.2009.
4. On the other hand, Ch. Muhammad Taj Advocate, the learned counsel for the non-applicants, opposed the application preliminary on the ground that according to the Interim Constitution Act, 1974 as well as the Supreme Court Rules, 1978, the scope of review is available to the parties but after decision of review petition, an application against the review petition is same as to, challenge the judgment or order passed in the review petition. He submitted that the convict-applicants have been awarded death sentence by the apex Court and the mercy petition filed by them has also been rejected by the. Worthy President, therefore, the instant application has been filed only to defeat the fate of the judgment of the apex Court and to linger on the execution of death sentence.
The learned counsel submitted that astonishingly, the convict-applicants have filed 3rd application to review the judgment of the Supreme Court whereas it has been held in numerous pronouncements by this august Court that the scope of review is limited, the only review petition against the judgment of this Court can be filed if there appears any mistake or error apparent on the face of record. He pressed into service the submission that despite providing many opportunities of hearing to the petitioners, they were served through notice but despite service, neither they engaged any counsel nor appeared personally before this Court, therefore, the question of violation of the principle of natural justice does not arise at all. He further contended that the judgment has been duly signed by the author on the date when his lordship's resignation stood accepted by the worthy President, thus, the question of signing the judgment after the resignation does not arise at all. The learned counsel further contended that the convict- applicants are involved in a heinous offence of murder during dacoity and they have been awarded sentence of death by the competent Court. The learned counsel further argued that the points-raised by the learned counsel for the convict-applicants cannot be taken into consideration merely on the ground that when the review petition has been decided by this august Court, further applications to challenge the same are not permissible under law. He finally submitted that the application is baseless, without legal justification and jurisdiction, therefore, the same being without any substance, merits dismissal.
5. We have heard the learned counsel for the parties and have also gone through the record with care. It appears from the record that the convict applicants are involved in a heinous offence of murder during dacoity. The first appellate Court awarded death - -sentence to Muhammad Riaz and Muhammad Fayyaz. On appeal the Court upheld the judgment of the Shariat Court vide judgment dated 23.6.2006. A Review Petition No, 1/2006 filed by the convict-persons was also dismissed by this Court vide judgment dated 11.10.2006, The concluding paragraph of the judgment passed in. Review Petition No, 1/2006 is reproduced below:-- The petitioners want the Court to take a different view than what has been taken in the judgment under review. Rehearing of a concluded matter is not allowed under the practice of the Court.
Moreover, there is no reason to rehear the case when the Court has dealt with a matter in a very exhaustive and substantive manner. It is also a settled judicial practice that review cannot be allowed simply for the reason that a different view could also be taken in the matter, which is also a rehearing of the case. We are fortified in holding this view by the cases reported as Muhammad Riaz & others us. Pervaiz Mehandi & 72 others [2005 SCR 364] and Sharif Ahmed Hashmi us.
Chairman Screening Committee Lahore and another [PLJ 1981 SC 28].
A perusal of above referred paragraph of the judgment passed in Review Petition No, 1/2006 transpires that scope of review before the Supreme Court is limited. Rehearing of a case for the purpose to obtain favourable conclusion cannot be allowed. Whereas the instant application has been filed while stepping forward from the sphere provided in the Azad Jammu & Kashmir Interim Constitution Act, 1974 and the Supreme Court Rules, 1978 to invoke the inherent powers of this Court. In our opinion, findings on this application shall be deemed to assume the original jurisdiction by this Court which is extra-constitutional and barred by the Azad Jammu & Kashmir Rules Supreme Court Rules, 1978.
6. It will be pertinent to mention here that after disposal of the review petition by this Court, no other-cause or application, etc. is entertainable. We deem it proper to reproduce here the relevant provision of Order XLVI of the Supreme Court Rules, which deals with the review petition. The same reads as under:-- "1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII Rule 1 of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record.
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9. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.
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A perusal of referred relevant rules/Order XLVI of Supreme Court Rules, reveals that after final disposal of review petition by this Court, the subsequent application for review is against the law on the subject. This Court, vide judgment dated 22.12.2009, dismissed the review petition filed by the applicants. A Miscellaneous application filed by the applicants has also been dismissed by this Court vide judgment dated 11.5.2010, the operative of which reads as under:-- "In the case in hand, after exhausting all the remedies the mercy petition stands also rejected by the President, the question of invoking the inherent jurisdiction of the Court to reopen the case does not arise. Hence, this application being devoid of any. "legal force is hereby dismissed."
7. The argument of the learned counsel for the applicants that no body can be condemned unheard and any judgment recorded without hearing the other side amounts to violation of the principles of natural justice, is without any substance. It may be mentioned here that Appeal No, 19/2006 decided on 23.6.2006 was filed by the convict-applicants before this Court. Mr. Abdul Rashid Abbasi Advocate, appeared on behalf of the applicants and contested the case. Therefore, it cannot be said that the applicants have been deprived of their right of hearing. The judgment passed in Appeal No, 19/2006 was assailed by the applicants through Review Petition No, 1/2006 before this Court, which was dismissed. It is settled that after filing any cause/petition/appeal etc., before any Court, the party, filing the same is bound to appear and contest their case. In the Instant case, the applicants filed review petition before this Court. It was enjoined upon them to contest the review petition before this Court but they failed.
8. Another important aspect of the matter is that the applicants have been awarded death sentence by the Court of competent jurisdiction. This order has been upheld by this Court in appeal and the mercy petition filed by the applicants before the Worthy President of Azad Jammu and Kashmir also failed and after that, only to defeat the ends of justice, the instiant application has been filed which in our considered opinion is only a tactics to defeat the fate of the verdict of the Court.
9. It may be stated here that the sentence under law has been awarded to the convict-applicants.
According to celebrated principles of . Criminal Administration of Justice such criminals should be brought to justice so as to keep the society peaceful and safe. Now a days it has become the trend that the criminals, after committing the offences escape themselves by different means and ways.
This application is a legal way to support the trend which cannot be allowed by this Court.
10. The application under Order XLIII of the Supreme Court Rules is not maintainable in the case where review petition has already been., decided. Even such application according to previous pronouncement of this Court is not maintainable. We, for brevity; reproduce the relevant provisions of Order XLIII which speaks as under:- Power to dispense and inherent powers.
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5.Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
6. The Court may at any time either of its own motion or on the application of any party make such orders as may be necessary or reasonable in respect of any of the matters mentioned in the - rules, may issue summons to persons whose attendance is required either to give evidence or to produce documents, or order any fact to' be proved by affidavit.
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A perusal of aforesaid provisions of Supreme Court Rules reveals that the same have been provided for the matters already pending before this Court. Entertaining of new cause or application in the garb of provisions of Order XLIII of the Supreme Court Rules, is not-permissible under law. Therefore, the application is not maintainable on this sole ground.
In the light of what has been stated above, this application, being against law and constitutional provisions, stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.